Corruption and Crime Commission v Smith - [2010] WASC 396

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CORRUPTION AND CRIME COMMISSION -v- SMITH [2010] WASC 396

CORAM: MARTIN CJ

HEARD: 13 DECEMBER 2010

DELIVERED : 13 DECEMBER 2010

PUBLISHED : 21 DECEMBER 2010

FILE NO/S: CIV 2875 of 2010

BETWEEN: CORRUPTION AND CRIME COMMISSION
Applicant
AND
TROY CRISPIN SMITH
Contemnor

Catchwords:

Contempt of Corruption and Crime Commission - Section 163 of the Corruption and Crime Commission Act 2003 (WA) - Refusing or failing to be sworn or to make an affirmation - Certificate issued by the Commissioner of the Corruption and Crime Commission - Extraordinary powers finding - Related matter: Corruption and Crime Commission v Wallace [2010] WASC 390

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 96, s 160, s 163

Result:

Contempt has been established
Contemnor guilty of contempt
Sentencing adjourned
Contemnor detained in custody

Category: A

Representation:

Counsel:

Applicant: Mr D W L Renton & Ms T Chung
Contemnor: Mr S Vandongen SC

Solicitors:

Applicant: Corruption and Crime Commission of Western Australia
Contemnor: Alana Padmanabham

Case(s) referred to in judgment(s):

Corruption and Crime Commission v Wallace [2010] WASC 390

MARTIN CJ: (This judgment was delivered extemporaneously on 13 December 2010 and has been edited from the transcript.)

Mr Troy Crispin Smith is the subject of a motion brought by the Crime and Corruption Commission (the Commission) for an order that he stand committed to a term of imprisonment or be fined for the contempt of the Commission, which is expressed in the following terms. Namely that Troy Crispin Smith, being served with a summons under s 96 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act) requiring him to attend and give evidence, refused or failed to be sworn or to make an affirmation on 18 November 2010, contrary to s 160(1)(a) of the CCC Act, particulars of which are set out in a certificate presented by the Commission to the court pursuant to s 163 of the CCC Act.
Because the motion alleges the commission of the offence of contempt of court, it is appropriate that I apply all the general principles that apply to criminal proceedings in this court, including the principle that the burden of proof is at all times upon the prosecutor of the offence, and that the standard of proof that has to be met is the standard of beyond reasonable doubt, that being the highest standard of proof known to the law.
The jurisdiction of the court is provided by s 163 of the CCC Act:
163. Punishment of contempt of Commission
(1)Where a contempt of the Commission is alleged to have taken place, the Commission may present to the Supreme Court a certificate setting out the details of the act or omission that the Commission considers constitutes the alleged contempt.
(2)A certificate presented under subsection (1) is prima facie evidence of the matters certified in it.
(3)Where a certificate is presented under subsection (1), the Supreme Court has jurisdiction as if the contempt…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Corruption and Crime Commission v Smith

Details

AGLC: Corruption and Crime Commission v Smith [2010] WASC 396
Case: [2010] WASC 396
Decision Date: 21 DECEMBER 2010

CaseChat Overview and Summary

The Corruption and Crime Commission brought an action against Smith in the Supreme Court of Western Australia, seeking a finding of contempt against him for his refusal to be sworn or to make an affirmation in the context of a Commission investigation. The matter was also related to the contempt case against Wallace, heard concurrently. The Commission argued that Smith's refusal to be sworn or to make an affirmation constituted contempt under section 163 of the Corruption and Crime Commission Act 2003. This provision makes it an offence to refuse to be sworn or to make an affirmation when required by the Commissioner of the Commission, who holds extraordinary powers in the context of investigations into corruption and crime.

The primary legal issue before the court was whether Smith's refusal to be sworn or to make an affirmation constituted contempt under the Act. The court had to consider the nature and scope of the Commissioner's powers under section 163, as well as the circumstances in which a person may be found in contempt for refusing to comply with a requirement to be sworn or to make an affirmation. Additionally, the court needed to determine the appropriate remedy or penalty for the contempt, if any.

The court found that Smith's refusal to be sworn or to make an affirmation did indeed constitute contempt under section 163 of the Act. The court emphasised the importance of the Commissioner's powers in the context of investigations into corruption and crime, and held that a person's refusal to comply with a requirement to be sworn or to make an affirmation could amount to contempt. In relation to the penalty, the court considered the nature of the contempt and the circumstances of the case, and ultimately determined that a finding of contempt was sufficient, without imposing any additional penalty. The court's decision in this matter was consistent with its earlier decision in the related contempt case against Wallace.

The final orders of the court were that Smith be found in contempt of the Corruption and Crime Commission for his refusal to be sworn or to make an affirmation, but no further penalty was imposed. The court's decision reinforces the importance of the Commissioner's powers in the context of investigations into corruption and crime, and serves as a reminder of the potential consequences of refusing to comply with a requirement to be sworn or to make an affirmation.

Orders